Paul M. Starkman

The plaintiff succeeded on a motion to refer a construction lien action to an Associate Judge for trial.

The plaintiff sought costs on a substantial indemnity basis, arguing the defendants defended the action disproportionately.

The defendants argued no costs should be awarded as the motion raised a novel point of law.

The court found the issue was not novel but declined to award substantial indemnity costs, finding no reprehensible conduct.

Costs were fixed on a partial indemnity basis at $4,975.00.

The plaintiff brought a motion under s. 58(1) of the Construction Act to refer a construction lien action to an Associate Judge for trial.

The defendants opposed, arguing that because the claim amount fell within the monetary jurisdiction of the Small Claims Court, the court was mandated to refer the matter to the Small Claims Court.

The court rejected the defendants' statutory interpretation, holding that s. 58(1) confers discretion to refer the action to either an Associate Judge or the Small Claims Court.

Applying the principles of proportionality and timeliness, the court exercised its discretion to refer the action to an Associate Judge.